Snowden’s Legacy: A Public Debate About Online Privacy

As you may have noticed, my friend and colleague Jeff Toobin has a post up questioning whether Edward Snowden’s leaks have really served the national interest of the United States. Having already debated this one with Jeff before in print and on television, I am a bit reluctant to get back into it, but here are a few points I think most people can agree upon.

Firstly, this isn’t primarily a matter of whether U.S. laws were broken. It’s a much larger issue of how far privacy extends in the Internet age, and how the rights of the individual should be balanced against the government’s obligation to counter terrorism and other threats. Under successive iterations of the Patriot Act, and the system of secret intelligence courts it has codified and extended, American intelligence agencies can do a lot of questionable things perfectly legally. Thanks to Snowden, and the documents he leaked to the Guardian and the Washington Post, we know they take every advantage of that opportunity.

Here’s a quick reminder. The National Security Agency logs the details of practically every American telephone call, and has done so for years. For a time, it also recorded the details of whom we e-mail and when. (It’s not clear from Snowden’s documents whether this program, or a similar one, is continuing.) In addition, the agency liberally exercises its “court-approved” right to trawl through the actual content of e-mails from anybody who comes into contact with anybody who corresponded with somebody who may have corresponded with a terrorist suspect overseas. (Quite how far out from the original suspect the ring of surveillance goes is another thing we don’t know for sure. Snowden has suggested that N.S.A. officials have wide leeway in spying on the e-mails of practically anybody they deem to be of interest.)

Is all this O.K.? Are the measures necessary to protect us from terrorism? President Obama and his defenders say they are. Still, in an effort to reassure the public, the President has proposed a series of modest but worthwhile changes to the way the secret intelligence courts operate, and how the N.S.A. communicates with the world. In announcing these proposals, the President suggested that he was moving in this direction even before Snowden’s leaks. If that’s true, it just shows how good he is at keeping a secret. Until the intervention of the dissident systems analyst, the Administration and members of both parties in Congress had, with a few honorable exceptions, publicly brushed aside concerns about the Patriot Act and its enabling of government snooping.

With all due respect to the President, it’s pretty obvious that the current political debate wouldn’t be taking place without Snowden’s intervention. The fact that the leaker is currently taking shelter in Vladimir Putin’s Russia doesn’t alter that, nor do the demands that he come home and subject himself to the same legal ordeal as Bradley Manning.

And Snowden hasn’t just instigated a long-overdue discussion about the limits of the U.S. surveillance state. In detailing how the N.S.A. routinely gathers vast amounts of personal information from telephone companies and Internet providers, he also forced Silicon Valley to respond to broader concerns about online privacy. Just a few days ago, Google announced it would automatically encrypt user data that it stores in its “cloud” and said it wouldn’t give the government the encryption keys. To be sure, the secret intelligence courts can still order Google and its rivals to hand over user data. But all Internet companies are now aware that being viewed as an unofficial arm of the U.S. spying apparatus is a potential threat to their business.

Overseas, too, there is an ongoing debate about these matters. Take Britain, which for decades has been afflicted with a near-obsessive approach to official secrecy. (Until 2000, the U.K. didn’t even have a freedom-of-information law.) Snowden’s revelations that G.C.H.Q., the British version of the N.S.A., routinely intercepts Internet traffic carried on transatlantic cables, and that the U.S. government paid the agency at least a hundred million pounds to help finance its activities, prompted a discussion of whether the British spooks were doing the bidding of their American colleagues, and perhaps enabling them to circumvent U.S. legal restrictions. Now, people are asking questions about the decision to detain, at Heathrow Airport, David Miranda, a Brazilian national who is the partner of Glenn Greenwald, the Guardian journalist who was one of the recipients of Snowden’s leaks. “The Home Secretary needs to tell us whether she or the Prime Minister were informed or involved in this decision,” Yvette Cooper, the opposition Labour Party’s Shadow Home Secretary, said on Tuesday. “Is it really possible that the American President was told what was happening but the British Prime Minister wasn’t?” (The Home Secretary, Theresa May, has since confirmed that she “was briefed in advance that there was a possibility of a port stop, of the sort that took place,” but she said it was the police’s decision, not hers, to actually go ahead with it.)

On the negative side of the ledger, all the publicity about Snowden’s leaks may have made life a bit more difficult for the N.S.A. and the C.I.A. as they try to monitor real targets—ones that represent a genuine threat to the United States and its allies. But it’s hardly news to the jihadis, and would-be jihadis, that Western intelligence agencies are monitoring phone calls and the Internet. For years, the two sides have been playing an electronic game of cat and mouse. And the very top targets, such as the late Osama bin Laden and his closest colleagues, try to refrain from any electronic communication at all.

Looking ahead, it’s too early to say whether Snowden’s revelations will have much of an effect on the quantity of domestic surveillance that is carried out, as opposed to just sparking public discussion about it. Given the technological capabilities of the U.S. intelligence agencies, their lobbying power in Washington, and the fear of being labeled soft on terrorism that grips both parties, it would be somewhat surprising if many new restrictions are placed on the monitoring of routine electronic communications, even those that are exclusively between American citizens. At least, though, we now know quite a bit more about this stuff, and how little real privacy the Internet affords. And that, surely, isn’t such a bad thing.

Photograph by Andrew Harrer/Bloomberg/Getty.

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